[1994] OLRB Rep. November 1514

4141-93-R; 4275-93-U Euclid-Hitachi Employees Association, Applicant v. Euclid-Hitachi Heavy Equipment Ltd., Responding Party v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW­Canada) and its Local 1917, Intervenor; National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW - Canada) and its Local 1917, Applicant v. Euclid-Hitachi Heavy Equipment Ltd., Responding Party

BEFORE: Russell G. Goodfellow, Vice-Chair, and Board Members W. H. Wightinan and C. McDonald.

APPEARANCES: John Hyde, Bill Elliott and Cohn Vos for Euclid-Hitachi Employees Association; Norman MacL. Rogers, Bill Rowe and Michael Fitzgibbon for Euclid-Hitachi Heavy Equipment Ltd.; Frank Luce, Lisa Kelly, Tammy Heller and Gary Kentner for CAW - Canada.

DECISION OF VICE-CHAIR RUSSELL G. GOODFELLOW AND BOARD MEMBER W. H. WIGHTMAN; November 30, 1994

1. These files are a displacement application for certification by the Euclid-Hitachi Employees' Association (the "association") and an application under section 91 of the Labour Relations Act by the incumbent CAW Local 1917 (the "CAW" or the "union").

2. A pre-hearing vote was held in the application for certification and the ballot box was sealed pending the resolution of the following issues:

(i) whether the Board should refuse to entertain the application for cer­tification, having regard to section 105(2)(i) of the Act and the recent dismissal by the Board of an application for termination of bargain­ing rights filed by the president of the association, William Elliott (the "bar" issue);

(ii) whether the association is a "trade union" within the meaning of the Act (the "trade union" issue); and

(iii) whether the association was formed with the participation and sup­port of the employer, and whether the employer thereby interfered with the administration of the union and the representation of employees by the union contrary to sections 13 and 65 of the Act (the "employer support" issue).

3. Each issue will be dealt with in turn.

The "Bar" Issue

4. Section 105 of the Act states in part:

105.-(l) The Board shall exercise the powers and perform the duties that are conferred or imposed upon it by or under this Act.

(2) Without limiting the generality of subsection (1), the Board has power,

(i) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the employees affected by an unsuccessful application or by any person or trade union representing the employees within any period not exceeding ten months from the date of the dismissal of the unsuccessful application;

5. For purposes of this motion, we are asked to assume that the association is a "trade union within the meaning of the Act.

6. The application for certification was filed by the association on March 4, 1994. The president of the association is William Elliott. On January 21, 1994, Mr. Elliott filed an application for termination of bargaining rights. That application was dismissed on February 25, 1994, after Mr. Elliott had asked to withdraw it. The reason for the request to withdraw and for the dismissal of the application was that Mr. Elliott had already been advised by the Labour Relations Officer assigned to the case that unless certain timely reaffirmations of support filed on behalf of the CAW could be shown to be involuntary, the application would be three signatures short of the forty-five per cent required for a vote under section 58(3) of the Act.

7. Mr. Elliott testified that the application for termination of bargaining rights and the application for certification were part of a single strategy to remove and replace the union. Counsel to Mr. Elliott in this application was also consulted by him with respect to the termination applica­tion.

8. At the time Mr. Elliott filed the termination application, the union and the employer had commenced bargaining for the renewal of a collective agreement. The agreement was to expire on March 6, 1994. In light of these applications, however, the parties agreed to suspend further negotiations and to continue the terms and conditions of employment set out in the expired collec­tive agreement.

9. On the basis of these facts, the union submits that the Board should refuse to entertain the application for certification. It relies on the close association between the applicants in both cases, the fact that both applications were part of a single strategy, the disruptive effect that the applications have had on collective bargaining, and the lack of opportunity for the union to bargain a renewal agreement between the dismissal of the first application and the filing of the second.

10. As pointed out by the union, the questions the Board asks itself in a case of this kind were set out in Cara Operations Limited, [1992] OLRB Rep. Mar. 295, and may be re-stated as fol­lows:

(1) Has the representation issue been raised and determined in a previous Board pro­ceeding?

(2) If so, has the union had a reasonable opportunity to bargain since then?

(3) Are there any exceptional circumstances?

11. This approach to the exercise of the Board's discretion is intended to ensure that employees are given a reasonable opportunity to express their views on the question of continued representation by the trade union, or representation by another trade union, without causing undue disruption in the workplace or to the collective bargaining process. The Board has declined to entertain a subsequent application where an earlier application has resulted in a representation vote or where an applicant has asked to withdraw the application to avoid defeat in a representa­tion vote that has been directed but not yet held (see: Repac Construction and Materials Limited, [1978] OLRB Rep. Jan. 91, and Randy A. Burke, dated June 7, 1993, unreported) [reported at [1993] OLRB Rep. June 5721. Absent a determination of the representation issue on the merits, however, the Board has generally been unwilling to dismiss a second certification or termination application brought by the same or similar parties as an earlier one.

12. While acknowledging that no vote was held or directed in Mr. Elliott's termination application, the union argues that the Board should treat the petition and subsequent reaffirma­tions of support filed in that case as akin to a vote or, in other words, as a determination of the rep­resentation issue. A majority of this panel does not agree. Petitions and counter-petitions are not a substitute for a secret ballot vote. They are simply the means by which a representation issue may be raised. The statute contemplates that the resolution of that issue can only be by way of the bal­lot box. Moreover, the mere filing of an application for termination of bargaining rights, whether or not it is followed by a counter-petition, does not give rise to the same concerns for workplace or collective bargaining disruption as the holding of a vote.

13. Accordingly, and absent any suggestion by the union of "exceptional circumstances", the Board will not refuse to entertain the association's application.

The "Trade Union" Issue

14. The second issue is whether or not the association qualifies as a "trade union" within the meaning of the Act. The evidence relevant to this issue was given by Mr. Elliott, Cohn Vos, and Wayne Patterson, all of whom are representatives of the association.

15. In late 1993, and anticipating the commencement of the "open period" which was to arise under the collective agreement on January 6, 1994, Mr. Elliott began researching the subject of forming an in-house union to replace the CAW. He spoke to an individual who had been involved in an earlier application for certification by an employee association at the predecessor to Euclid-Hitachi and obtained a copy of the Board's decision in that case (see: VME Equipment of Canada Ltd., Board File No. 0879-86-R, dated October 14, 1986) [reported at [1986] OLRB Rep. Oct. 1480]. From that decision, Mr. Elliott understood that the earlier application had been dis­missed because individuals had signed applications for membership in the association before the constitution was ratified, rather than after. Accordingly, as far as Mr. Elliott could tell, "the thing to do was to prepare a constitution, hold a meeting, read the constitution, vote on it, elect officers and then ratify the constitution by signing the back of it".

16. After speaking with representatives of other employee associations in the Guelph area, and at least one employer whose trade union had recently been decertified, Mr. Elliott obtained a copy of the employee association constitution at Schneider Canada. Over Christmas and into Janu­ary 1994, Mr. Elliott had the 12-page Schneider constitution re-typed, leaving blank spaces for matters peculiar to Euclid-Hitachi. He then called a meeting for January 22, 1994 at the Orange Hall in Guelph.

17. The January 22nd meeting was one of a series of meetings that had been held over the preceding months to gather support for the formation of the in-house association and the concur­rent application for termination of bargaining rights. The termination application had been filed the previous day, on January 21, 1994, and the meeting was attended by thirty-nine individuals who had signed the petition. Mr. Elliott began the meeting by delivering a speech reiterating the intention of forming the association to replace the CAW. Cohn Vos then read the draft constitu­tion aloud. During the course of this reading questions were asked and votes were held to deal with a variety of matters, including the name of the association, the location of its headquarters, and the approval, ratification and confirmation clause. There was also some discussion about a "contract time and date", which may or may not have had to do with the provision relating to the associa­tion's "fiscal year". Lastly, a new clause was added to the end of the constitution dealing with the need to recognize the coincident interests of workers and management in "achieving industrial peace, prosperity and happiness".

18. Once these matters were concluded, all those present voted to adopt the constitution. Messrs. Elliott, Vos and Patterson were then elected as officers of the association. Finally, all those in attendance came to the front of the room and signed a document which had been read aloud and placed beside the constitution on a table. The document states:

I the undersigned agree and accept our own Constitution read at the Orange Hall on Waterloo Ave. Guelph, Ont. to be our own Constitution for our own Association The Euclid Hitachi Employees Association.

19. No membership cards were signed at or before the meeting. Over the course of the next few weeks, however, all those who had attended the January 22nd meeting signed applications for membership in the association.

20. On the basis of this evidence, the union submits that the association has not fulfilled the requirements necessary to form a "trade union" under the Act. The union relies on the following procedure set out in Local 199 U.A. W. Building Corporation, [1977] OLRB Rep. July 472, as establishing the prerequisites for the formation of a trade union:

(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the proce­dure for electing officers and calling meetings;

(2) the constitution should be placed before a meeting of employees for approval;

(3) the employees attending such meeting should be admitted to membership;

(4) the constitution should be adopted or ratified by the vote of said members;

(5) officers should be elected pursuant to the constitution.

21. Referring to these steps, the union says that there is no evidence that there were any members in the association at the January 22nd meeting. (Having regard to certain representations made by counsel for the association during the course of the hearing, the document identified in paragraph 18 of this decision could not be relied on as evidence of membership.) The only evi­dence of membership, therefore, is that which was obtained two or three weeks later when, according to the union, employees signed membership cards in a non-existent union.

22. Although noting that the Board may be less inclined than it once was to take a "techni­cal" view of the requirements of trade union status (see e.g. Caterair Chateau Canada Limited [1994] OLRB Rep. April 365), the union says that it should not become "nihilistic" about it. An organization cannot exist without members. An intention to form a trade union is not sufficient without the required acts.

23. The union also asserts that the Board does not have sufficient evidence of a constitu­tion. The document provided to the Board by Mr. Elliott was admitted to be nothing more than a photocopy of a re-typed version of the document which was read aloud at the January 22nd meet­ing. Even this claim is unreliable, according to the union, given Mr. Elliott's inability or unwilling­ness to satisfy an undertaking given at the hearing to produce the original constitution.

24. A majority of this panel does not share the union's discomfort about the absence of the original constitution. While only Mr. Elliott expressly identified the constitution, it was implicit in the testimony of the other witnesses that the 12-page document placed before the Board was, in substance, the same document that had been agreed to by employees at the January 22nd meeting. More importantly, we are of the view that the steps taken by Mr. Elliott and his supporters to form a "trade union" were sufficient for the purposes of the Act.

25. The salient portion of the definition of a "trade union" is set out in section 1 of the Act, as follows:

"trade union" means an organization of employees formed for purposes that include the regula­tion of relations between employees and employers

26. In keeping with the statutory purpose of ensuring that employees can freely exercise the right to organize by choosing, joining and being represented by a trade union of their own choice, and the varying levels of sophistication of those who might seek to exercise this right, the term "trade union" is given a broad definition. The statute requires only that there be an "organization" of "employees" formed for certain purposes. It does not specify a procedure by which this is to be accomplished. Nevertheless, to provide some measure of guidance to the labour relations commu­nity, and to assist employees in exercising their statutory rights, the Board developed the proce­dure set out in Local 199 U.A. W. Building Corporation. In the view of the majority of this panel, however, that procedure was intended to be facilitative rather than restrictive; it was intended to assist employees in achieving the goal of self-organization, rather than to restrict them in the exer­cise of that right.

27. In this case, the union did not dispute that it was the intention of Mr. Elliott and those who attended the January 22nd meeting to form an organization of employees for the purpose of regulating relations between the Euclid-Hitachi work force and the company. Nor did it suggest that the 12-page constitution that was placed before the Board was inadequate in its statement of the purposes required by the statute or as to the relationship between the employees who agreed to be bound by it. (The constitution contains the usual purpose clause and addresses a variety of mat­ters necessary to the running of the association). The union also did not argue that the specific pro­cedures followed to elect officers at the January 22nd meeting or to transact any other business, including the ratification of the constitution, were inadequate. Lastly, the union did not take the position that the applications for membership signed by those who attended the January 22nd meeting were deficient, apart from the date on which they were completed.

28. As the Board has noted on numerous occasions, the five step procedure set out in Local 199 U.A. W. Building Corporation is not an exhaustive guide to the ways in which a "trade union may be brought into existence. Over the years, the Board has found many other procedures to have been sufficient (see e.g. Caterair, supra, and Ontario Hydro, [1989] OLRB Rep. Feb. 185), and it has been cautioned not to go beyond the statutory definition in determining whether an entity qualifies as a "trade union" within the meaning of the Act (see C.S.A.O. National (Inc.) v. Oakville Trafalgar Memorial Hospital Association et al, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498 (C.A.)).

29. Thus, in Ontario Hydro, supra, after noting the status of a trade union as an unincorpo­rated association of individuals bound together by contract, the Board stated:

…..the only essential prerequisite to the existence of an unincorporated association of individuals is that two or more such individuals have agreed to be bound by the terms of an identifiable con­stitution. We were not referred to any judicial authority for the proposition that such an agree­ment will not be effective unless the parties to it have employed ratification votes, membership oaths or other formalities which are unnecessary to the formation of other contracts at common law. Nothing in the Labour Relations Act appears to authorize the Board's insisting on such for­malities. The Board cannot go beyond the reasonable meaning of the provisions of the Act in imposing "requirements" in this regard.

30. In this case, it is clear that a group of employees attended the January 22nd meeting for the purpose of forming a "trade union". Those employees then agreed to a constitution which includes as one of its purposes the regulation of relations between employees and employers. The employees then elected officers for the purpose of running the association. Later, the same employees signed applications for membership in the association. The fact that those applications were not completed until a few weeks after the other steps had been taken is not critical in our view. We are satisfied that the Euclid-Hitachi Employees Association is a "trade union" within the meaning of the Act.

The "Employer Support" Issue

31. The third issue is whether the employer participated in the formation or administration of the association, or contributed financial or other support to it, contrary to sections 13 and 65 of the Labour Relations Act. Those provisions state:

32. The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or other administration or has contributed financial or other sup­port to it or if it discriminates against any person because of any ground of discrimination pro­hibited by the Human Rights Code or the Canadian Charter of Rights and Freedoms.

33. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contrib­ute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

34. The purpose of sections 13 and 65 has been considered in a number of Board decisions. In Edwards and Edwards Limited, 52 CLLC para. 17,027, the Board stated:

The unfair practice sections of the Act (including section [65] which prohibits the type of employer conduct referred to in section [13]) are, in large part, designed to safeguard the free­dom of employees to join and to bargain collectively through the trade union of their own choice which is granted in section 3. That purpose is furthered by the provisions of section [13] which places upon the Board the obligation to satisfy itself that no employer has meddled in the affairs of an applicant for certification. The section is clearly aimed at "company-dominated" trade unions which are not entitled to be certified, on the theory that a trade union fostered by an employer cannot be considered as having been freely chosen by employees. The section des­ignates conduct by means of which an employer might seek to confine the broad right conferred by section 3 and is therefore to be called into play where that purpose appears. We consider it is intended to be applied where employer activities are of such a character or are of such propor­tions that it is reasonable to infer that the employees have not exercised a free choice in the matter of the selection of a bargaining agent, or where an employer has given material assistance to a trade union in connection with its organizational or other activities; where, in other words, the particular applicant is not truly the chosen bargaining agent of the employees concerned.

Subsequently, in Canada Crushed Stone, [1977] OLRB Rep. Dec. 806, the Board commented:

The broad purpose of the section, simply stated, is to preserve the integrity of the collective bar­gaining process by barring the application of any trade union which, because of employer sup­port, does not owe its sole allegiance to those whom it seeks to represent. A trade union which has accepted the support of any employer whose interests may be affected by its representation places itself in a potential conflict of interest and thereby undermines itself as a union "quali­fied" to act on behalf of those it seeks to represent. Section [13] catches both the "sweetheart" arrangement between the parties directly affected and also the accepted support of any outside employer whose interests may be affected by the collective representation of those whom the union seeks to represent. In both instances the union's acceptance of employer support activates the Section 13] bar.

33. The evidence with respect to this issue consumed five hearing days, and is largely cir­cumstantial in nature. Based on this evidence, counsel for the union urged us to infer that if the association is a "trade union" within the meaning of the Act, it is one to which section 13 applies and that the employer's conduct violates section 65. For the reasons set out below, this is some­thing which the majority is not prepared to do.

34. It was clear from the testimony of Gary Kentner, the union's plant chair, that the activi­ties of Mr. Elliott and his followers have been known to the CAW since at least October 1993. At that time, Mr. Elliott, a 17 year employee, began preparing and circulating leaflets comparing the dues charged by the CAW with those that might be charged by an in-house association, and criti­cizing the union's accomplishments. On October 27, Mr. Elliott held a meeting to determine if there was sufficient initial support for the de-certification of the CAW and the formation of an in-house association. Of the 174 members in the bargaining unit, 42 attended the meeting, including Mr. Kentner.

35. Thereafter, Mr. Elliott and his followers appear to have carried on an open and undis­guised campaign for employee support by, for example, distributing leaflets, holding meetings, and selling tickets to a "boy's nite out". (In this connection, we note that all but one of the bargaining unit members are men. The only woman in the bargaining unit testified on behalf of the associa­tion, but did not attend the "stag"). All of these activities appear to have been well publicized, and there is no suggestion that the union was unaware of any of them. Indeed, it appears that Mr. Kentner attended a further association meeting, on December 5,1994, in the company of another union official. Overall, the CAW seems to have kept a close watch on Mr. Elliott's activities, not only to meet the challenge they posed but to ensure that they were without managerial support.

36. The CAW relies on the fact that Mr. Rowe, the personnel manager, acknowledges hav­ing had in his possession an association leaflet at the very outset of Mr. Elliott's campaign. The union also refers to the fact that Mr. Elliott placed leaflets on cars in the company parking lot dur­ing lunch hour on November 21, 1994. There is no evidence to suggest, however, that the associa­tion leaflet was given to Mr. Rowe by an association supporter, or that he knew of any of Mr. Elliott's activities prior to being informed of them by Mr. Kentner and his colleagues. Moreover, when Mr. Kentner advised Mr. Rowe of the distribution of the leaflets in the parking lot, Mr. Rowe's immediate response was to track down Mr. Elliott and order that the leaflets be removed without delay. In the same conversation, Mr. Rowe advised Mr. Elliott that any further activity of this kind on company time or company property would not be tolerated. All of this followed the taking of legal advice by Mr. Rowe, and the holding of a meeting with supervisors in which Mr. Rowe advised them to break up any and all non-work related activity.

37. Indeed, if there is one theme which runs throughout this case, it is the responsiveness of Mr. Rowe to the concerns of Mr. Kentner and his colleagues about perceived association activities. For example, at the request of Mr. Kentner, Mr. Rowe instructed Mr. Elliott to discontinue using the name "VME Association" (until January 1994 the company was known as VME Equipment Co. of Canada Ltd.), so as to avoid giving employees the impression that the company was sup­porting the association. This again followed the taking of legal advice. Likewise, upon being advised by the union of association cards and petitions having been circulated on company prop­erty (none of which was substantiated either at the time or in evidence before us), Mr. Rowe reit­erated his earlier advice to supervisors and, with the approval of counsel, posted a notice in the workplace which was intended to prohibit all association and CAW campaigning on company property. When this notice was later challenged by a CAW representative as improperly placing CAW and association activity on the same footing, Mr. Rowe again reviewed the matter with counsel and advised his supervisors to permit legitimate CAW activity on company property that did not interfere with production. (In this latter connection, it is interesting to note that the only other evidence of association-related leafletting having occurred on company time and company property involved the distribution of a CAW leaflet by Mr. Kentner, just prior to the posting of the notice).

38. In light of Mr. Rowe's admittedly prompt attention to the union's concerns, Mr. Kentner was asked by employer counsel during cross-examination what it was about Mr. Rowe's con­duct that caused suspicion. In an exchange which, for the majority, captures the essence of the case, Mr. Kentner first replied that it was the fact that the alleged association activity continued. Mr. Kentner was then asked:

Q. "So your concern was that, despite the best of efforts of the company, some discussions continued among the employees?"

A. "Yes".

39. The union also relies on the fact that Mr. Elliott was granted permission to leave work early on one occasion and then used this opportunity to sign-up supporters for his de-certification application. However, it was the uncontradicted evidence of Mr. Elliott, which we accept, that he had the prior approval of his leadhand, a bargaining unit member, to leave work once all of his work had been completed. It also appears from the evidence that such absences are not at all uncommon. The fact that Mr. Elliott's leave of absence form was later signed by the production manager, Mike West, appears to have been a formality in the circumstances and does not suggest to us employer support. Likewise, there is no evidence to suggest that Mr. Elliott's absences on January 31 and February 1, 1994 were for other than legitimate health-related reasons. The fact that Mr. Elliott made telephone calls on behalf of the association on one of these days is not some­thing which can be brought home to the employer.

40. While the Board has somewhat more difficulty with the use by Mr. Elliott of the person­nel facilitator's telephone on February 8,1994 to call the Board officer assigned to the termination application, on balance we find that neither it nor Mr. Rowe listening to Mr. Elliott expatiate upon the withdrawal of his de-certification application on February 25 are sufficient to constitute the kind of material support required by the Board's case law. In connection with the former incident, it was the uncontradicted evidence of Mr. Elliott, which we again accept, that he advised the per­sonnel facilitator that he needed to make a personal call and that both he and others had used the telephone for such purposes in the past. With respect to the conversation with Mr. Rowe, we note that it was preceded by one with Mr. Kentner, ostensibly to the same effect, which lasted for approximately one-half hour.

41. The union also suggests that an accounting entry in the association's records showing $5,000.00 from the sale of stag tickets is inherently implausible. We do not agree. It is clear from the evidence that Mr. Elliott has a substantial number of supporters, and that one employee, Gary Blyth, sold between 40-45 tickets. At ten dollars each, that alone amounts to as much as $450.00. The fact that the CAW appears to have derived less revenue from similar functions in the past does not affect our conclusion. Moreover, had such contributions been made, we would be surprised to find them recorded, in any form, in the association's one-page book of accounts.

42. The Board also heard considerable evidence about a March 2nd "meeting" between a large number of union and association supporters which took place during a break in one of the company's two main buildings. The meeting was observed from a distance by Mr. Rowe and Mr. West on the instructions of the plant manager. Voices were raised and a rubber mallet was brand­ished by an association supporter in front a union supporter. However, no complaints appear to have been made about the incident and no discipline was imposed. There was also no evidence to suggest that management saw the CAW supporter tapping the rubber mallet rhythmically into his palm, but even had it done so it is unclear what inference we should draw from the incident. The meeting arose at the instigation of the union and concluded more or less peacefully at the end of the break. Further, the CAW supporter before whom the mallet was displayed gave evidence before the Board. Mr. Watson is a man of considerable size and apparent vigour who, in the words of Mr. Kentner, is not easily intimidated. By all accounts, including his own, Mr. Watson simply "let it go on for a couple of minutes" before brushing the mallet aside with his hand stating, "that'll be enough of that".

43. Finally, the union also relies upon an alleged increase in Mr. Elliott's activity level in the workplace coincident with the campaign and certain conversations he is alleged to have had with association supporters. To some extent, we have already dealt with this issue through our description of Mr. Rowe's responsiveness to the union's concerns. For the most part, it appears that whenever these matters were brought to Mr. Rowe's attention, they were investigated or oth­erwise dealt with (e.g. through meetings with supervisors or the posting of the notice). Even more importantly, however, we point out that, except for the parking lot incident, there is no evidence whatsoever of an association membership card, petition, leaflet or stag ticket having been circu­lated on company property. Nor is there any evidence of a single association-related conversation having been overheard. Given the size of the bargaining unit and the CAW's awareness of, and interest in, the association's campaign, this fact is remarkable and speaks volumes in support of Mr. Elliott's own evidence that he instructed his followers from the outset (based on his knowledge of the reasons for a failed petition in 1986) to campaign away from the workplace and to ensure that there was no employer involvement.

44. In the result, the Board rejects the union's allegations that the association is a trade union to which section 13 applies or that section 65 has been violated, and directs that the ballots cast in the pre-hearing representation vote be counted.

DECISION OF BOARD MEMBER C. McDONALD; November 30, 1994

1. I respectfully dissent from the decision of my colleagues for the following reasons.

The "Bar" Issue

2. In cases where a second application for certification/termination is made on the heels of a prior application involving the same parties, the test to be applied in determining whether to set a bar is as follows: Where the first application was genuinely determined in the first case, the second should not be permitted for some time.

3. The rationale for this rule is that, once a termination issue has been dealt with on its merits, barring special circumstances, the incumbent union ought to have a reasonable opportunity to demonstrate its ability to bargain without undue impediment. Another union should not be per­mitted to continually make successive applications. Not only are subsequent attempts likely to be futile, the incumbent union should have some "breathing room" to establish a collective bargain­ing relationship with the employer. This manifestly cannot be accomplished where all of the incum­bent's time and resources are taken-up defending one raid after another. (Cara Operations Ltd., [1992] OLRB Rep. Mar. 295 at 297; Seven-Up (Ont.) Ltd., [1971] OLRB Rep. Dec. 791; Trinidad Leaseholds (Can.) Ltd., [1949] 1 CLLC 1355 (OLRB); Dunville Supermkt. Ltd., [1980] OLRB Rep. Aug. 1193 at 1195; Browning-Ferris Industries, [1982] OLRB Rep. Sept. 1253 at 1257; Storwall Intl. Inc., [1985] Nov. 1679 at 1681; R.D.L Electric, [1986] Aug. 1145 at 1148; Ont. Hospi­tal Association (Blue Cross), [1981] OLRB Rep. Apr. 468; Beaverwood Fibre Company Ltd., [1994] OLRB No. 318, File Nos. 1947-93-R and 1948-93-R.

For example, in Trinidad Leaseholds, the Board ruled as follows:

……In respect of regulation 7(4), with which were are immediately concerned, it would not in our view, accord with the manifest purpose of that regulation to conclude that once the ten month period has passed any number of applications may then be made, without interval, by the same applicant. On the contrary, we are of the opinion that where there is a current and active collec­tive bargaining relationship and where an application, properly made under regulation 7(4), is rejected on the ground that the applicant does not enjoy the requisite employee support, a sec­ond application by the same applicant should not be entertained by the Board until a reasonable opportunity has been given to the parties to the collective agreement to bargain collectively with a view to its renewal.

The question of representation which we are now asked to determine was tried by the Board as recently as July 27, 1949, at which time the Board found that the applicant did not have as mem­bers in good standing a majority of the employees concerned. The right of the employees affected to select a new bargaining agent has thus been fully recognized although, in actual fact, no new bargaining agent was designated. We must now take into account what is, as indicated by regulation 7(4), the equally important consideration of stability and continuity in collective bargaining. Our earlier decision, by implication, identified the intervenor as the authorized bar­gaining agent of the employees affected. Little purpose was served if the right of intervenor to continue to represent those employees was immediately thereafter again subject to question at the instance of the same applicant. The respondent and the intervenor have inevitably been hampered in their collective bargaining activities during the period when they would ordinarily have been directing every reasonable effort toward the negotiation of a renewal of the collective agreement. It is our view that before the Board undertakes a further consideration of the ques­tion of representation on an application by the present applicant the respondent and the interve­nor must be permitted a reasonable period of time during which to carry on collective bargain­ing without hindrance.

Accordingly, we find that the application is not timely and it is therefore dismissed.

The above passage was quoted approvingly in Ontario Hospital Association.

4. In Beaverwood, the Board ruled as follows:

5. The Board, in a line of cases that includes Trinidad Leaseholds, supra; and Ontario Hospital Association (Blue Cross) supra, has held that, once a representation issue has been dealt with on its merits and in the absence of special circumstances, an incumbent trade union ought to be afforded a reasonable opportunity to demonstrate, without undue impediment, its ability to bar­gain with the employer for a collective agreement on behalf of those employees which it continues to represent. The Board in Ontario Hospital Association (Blue Cross) supra, at paragraph 24 through 29 reviewed the factors underpinning its decision in that case:

The Board continued as follows:

21. We find that in all the circumstances of this case, the C.E.C. lacked a reasonable opportu­nity to bargain. To entertain this application would reward Local 192's Executive Board for its part in impeding the negotiations after their membership directed them to remain in the CEC. fold. Since, a the C.E.C. has not had a reasonable opportunity since the final disposition of the first application and the filing of the second application to bargain with Beaverwood, the Board in the exercise of its discretion under section 105 (2)(i) of the Act, is of the opinion that it should refuse to entertain the instant application.

22. Clearly, in the circumstances, the relative support of both the applicant and the incum­bent have already been genuinely determined. The applicant Bill Elliott and his counsel filed a pre­vious application for termination of bargaining rights on January 21, 1994. The incumbent union C.A.W. filed relevant and timely membership reaffirmations which were sufficient to cause the applicant to have less than the requisite forty-five percent. The applicant withdrew his application when it became clear that the incumbent union had enough support so that its bargaining rights could not be terminated.

23. The Board must go beyond the designation of the applicant in the style of cause in determining who are the true applicants in a termination application (Dunville at 1194; St. Michael's Shops of Can. Ltd., [1979] OLRB Rep. Oct. 1023).

24. The cases establish that is not necessary to have had a vote to cause the Board to refuse to entertain a second application. For example, in Ontario Hospital Association, the Board ruled as follows:

25. .. .However, the cases also make it clear that where there is an ongoing bargaining relation­ship an application need not result in an actual representation vote to cause the Board to refuse to entertain a second application under section 923(2)(i). For example, an application for certifi­cation dismissed because the applicant could not establish itself as a trade union within the meaning of the Act has provided a basis to the invocation of section 92(2)(i). See Filey-Hall Paper Box Co. Ltd., supra. A similar result has followed where a certification application was dismissed at a hearing because of clearly insufficient membership evidence support.

26. In the instant case the termination and certification application were brought by the same applicant, supported by substantially the same group of employees and represented by the same counsel. In similar circumstances the Board has dismissed the second application where it concluded it was brought to try the same representation dispute. See Blue Cross, supra:

27. For example, in Filey Hall Paper Box Co. Limited, supra, the initial application was one for certification and the second was that for a declaration terminating bargaining rights. The Board concluded that the principle explained in Trinidad Leaseholds applied particularly where sub­stantially the same group of employees supported both applications and where the person authorized to represent the employees before the Board was the same person authorized to rep­resent them in the earlier proceeding. The Board concluded that in all the circumstances the sec­ond application was brought "to try the same representation dispute" that was previously before the Board and dismissed.

28. A second factor in favour of a refusal, is the close association between the earlier termina­tion application and the instant certification application. A substantial majority of the employ­ees supporting the applicant were petitioners. Key officials of the applicant were prominent petitioners. The solicitor for the applicant acted for the petitioners in writing to the respondent in early to mid-January on the topic of contract ratification procedures. He acted for them on their application for reconsideration. And this application was filed before the reconsideration request had even been dealt with by the Board. The close association between applications is also revealed in the literature of the applicant, excerpts of which are reproduced above. The totality of this issue raises the concern expressed by the Board in Filey-Hall Paper Box Co. Limited, supra, that this second application has been brought "to try the same representation dispute" that was previously before the Board and dismissed.

29. For all the foregoing reasons I would have dismissed the instant application.

The "Trade Union" Issue

10. The majority's decision on this issue departs from the long established test that the Board applies in determining whether an organization qualifies as a "trade union", within the meaning of the Act. In addition, because the Euclid-Hitachi Employees Association was formed in order to frustrate collective bargaining, it does not qualify as a trade union.

11. The Board has tried not to be unduly technical in determining whether its five criteria have been met. This is especially true where union organizers act without the benefit of knowl­edgeable advice. (V.M.E. Equipment of Canada Ltd. [1986] OLRB Rep. 1480; Butterfield Div., Litton Canada Ltd., [1985] OLRB Rep. July 1001; Caterer Chateau Canada Ltd., [1994] OLRB Rep. Apr. 365; Ontario Hydro, [1989] OLRB Rep. Feb. 185; S.E.I.U., v. S.E.I.U., [1991] OLRB Rep. Feb. 267 at 269; Canteen of Canada Ltd., [1978] OLRB Rep. Sept. 802 at 806). That said, however, this flexibility must be balanced against the importance of the five steps. Because a union is a contractual relationship among employees, its existence requires a contract, referred to as a constitution. The constitutional requirement is not borne out of devotion to mere technicality, but out of the Board's fundamental concern that the organization is a viable one, capable of represent­ing the membership in collective action against their employer. In the absence of a constitution, there is nothing to demonstrate to the Board (or, more importantly, to the employees) what it is that the employees are joining.

12. Similarly, the steps must be taken in their proper order. Otherwise we would be left with a situation where, for example, workers could be members of an organization before it actu­ally existed. As mentioned, a union is a contractual relationship among employees, which cannot exist until the contract defining it is ratified by its members. Thus, in Canteen of Canada Ltd. (supra, at p. 805) and Federation of Teachers in Hebrew Schools (supra, at p. 801), where the membership applications were made before the constitution was adopted, it was held that, at the time the cards were signed, the employees had not agreed to become contractually bound.

13. There are many other cases which discuss the importance of the steps being taken in the order described. See, for example: Drummond Transit Company (Toronto), [1959] OLRB Rep. Feb. 31; Brockville Chemicals Employees Association, [1961] OLRB Rep. Jul. 134 at 134; Kitchener Packers Co. Employees' Association, [1963] OLRB Rep. Apr. 20; Proctor-Lewyt Div. of S.C.M. (Canada) Ltd., [1969] OLRB Rep. Sept. 760; Northern Electric Co., [1974] OLRB Rep. Oct. 693.

14. In light of the circumstances of this case and the Board's well-established approach to determining whether an organization qualifies as a trade union under the Act, I would have held that the Euclid-Hitachi Employees Association does not qualify as a trade union. In addition, I would have found that it did not qualify because it was formed in order to frustrate collective bar­gaining. The Association's President testified that he organized the application for termination of the incumbent union's bargaining rights and his certification application as part of a single strategy to get rid of the union. In both applications, the President was represented by the same counsel,

which Mr. Elliott referred to as a corporate lawyer. Mr. Elliott also benefited from the advice of other "employee associations" and employers. One of the employers he spoke to was the owner of Chapman's Ice Cream Ltd., who gave him advice on how to decertify a union. Mr. Elliott testified that Mr. Chapman boasted of spending approximately a million dollars over four years in trying to decertify the U.F.C.W. Based on these facts, the association is involved in a conflict of interest in the sense that it does not owe its first allegiance to the welfare of the workers it represents. The following quotation from Seafarers' Training Institute, [1984] OLRB Rep. Mar. 518, another sec­tion 1(1) case, is apposite:

6. Collective bargaining, by its very nature, requires an arm's-length relationship between the "two sides" whose interests and objectives are sometimes divergent. To put the matter colloqui­ally: the bargaining table really must have two sides and the employees' representative cannot wear two hats. The union's first interest and loyalty must be to those it represents and while this does not mean that there cannot be harmonious employer-employee relationships within a col­lective bargaining framework, neither should there be any doubt about the employees' right to an independent spokes[person]. Proper representation demands that the union be unfettered by any conflict of interest. No group of employees should be left to wonder whether an unpopular stand was the product of a behind-the-scenes deal or a "cosy relationship" between those who run the union and those who run the employer.

7. Thus, as Adams pointed out in Canadian Labour Law, 2d ed. (Aurora: Canada Law Book 1993), see also Butterfield and Centre Tool:

"When associations of this nature have intervened in proceedings where an established union seeks certification, Boards strictly ensure that the association meets the formal requirements."

16. This interpretation of section 1(1) is supported by the well established principle that remedial legislation, such as the Labour Relations Act, is to be given a large and liberal interpreta­tion so as to ensure the attainment of the statute's objectives. One purpose of the Act is to enhance the ability of employees to collectively negotiate past terms and conditions of employment (s.2. 1). A purposive approach also requires a consideration of the provisions of the statute as a whole and not just the particular language of section 1(1). In this regard, reference should be had to sections 13 and 65 of the Act. Section 13 prevents an organization from being certified if an employer has participated or contributed in its formation or administration. Section 65 makes this an unfair labour practice.

17. The relevance of these sections to a section 1(1) case was discussed in Niagara Veteran Taxi, [1979] OLRB Rep. Sept. 889:

18. The scheme of collective bargaining set out in the Act is premised on a separation of identity and an arm's length relationship between trade unions and the employees they represent on the one hand and employers, i.e. persons exercising managerial functions, on the other. Without this separation a conflict of interest may result and the interests of the employees who seek rep­resentation by a union in the regulation of their relationship with their employer may be com­promised. The Legislature's intention to [ensure] a separation between the two groups is appar­ent in numerous sections of the Act: Section (13) prohibits the Board from certifying a union if an employer has participated in its formation or administration or has contributed financial or other support; section (49) states that an agreement shall be deemed not to be a collective agreement if an employer has supported or participated in the union in the manner set out above; section (65) makes it an unfair labour practice for an employer to participate in or inter­fere with the formation, selection or administration of a trade union... . As well, the Board's jurisprudence on statements of desire filed either in support of a termination application or in opposition to an application for certification requires that they be free from employer involve­ment. ...

(See also Tn-Canada Inc.,[1981] OLRB Rep. Oct. 1509.)

18. For all the foregoing reasons, I would have held that the Euclid-Hitachi Employees Association does not qualify as a "trade union" within the meaning of the Act.

The "Employer Support" Issue

19. I would have found that the evidence supports the inference that the Euclid-Hitachi Employees Association was formed with the assistance of this and, perhaps, other employers.

20. In particular, I would draw attention again to the conversation Mr. Elliott had with David Chapman, the $5,000.00 purportedly raised through the sale of "stag" tickets, the employ­er's failure to call Mr. West as a witness to explain the approval of Mr. Elliott's leave of absence, and the employer's failure to call Mr. Ferraro to explain the use of the telephone. As counsel for the union pointed out, Mr. Elliott appears to have enjoyed a "high degree of comfort" from this employer for his activities. I would have found that the employer was, at minimum, wilfully blind to Mr. Elliott's activities.

21. Based on these and the other facts referred to in the majority decision, I believe that the association is unfit to represent the employees of Euclid-Hitachi. I would, therefore, have directed that the ballots cast in the representation vote not be counted and that they be destroyed.